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Strasbourg,
1 April 2000
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Diffusion
restreinte
CDL-RA(99)001
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
ANNUAL REPORT OF
ACTIVITIES FOR 1999
TABLE OF
CONTENTS
VOLUME I – Presentation of the
Commission’s Activities
Statement byMr Antonio La Pergola, President of the Venice
Commission to the Committee of Ministers (3 May 2000) 8
MEMBERSHIP. 12
Associate members. 12
I. Activities of
the European Commission for Democracy through Law in the field of democratic
reform.. 14
1. CO-OPERATION WITH ALBANIA.. 14
2. CO-OPERATION WITH ARMENIA.. 16
3. CO-OPERATION WITH AZERBAIJAN.. 16
4. CO-OPERATION WITH BELARUS. 16
5. CO-OPERATION WITH BOSNIA AND HERZEGOVINA.. 16
6. CO-OPERATION WITH BULGARIA.. 18
7. CO-OPERATION WITH CROATIA.. 20
8. CO-OPERATION WITH GEORGIA.. 21
9. CO-OPERATION WITH KAZAKHSTAN.. 21
10. CO-OPERATION WITH LATVIA.. 22
11. CO-OPERATION WITH MOLDOVA.. 22
12. COOPERATION
WITH MONTENEGRO (FEDERAL REPUBLIC OF YUGOSLAVIA) 24
13. CO-OPERATION WITH PORTUGAL. 24
14. CO-OPERATION WITH SLOVAKIA.. 25
15. CO-OPERATION WITH SLOVENIA.. 25
16. CO-OPERATION WITH SOUTH AFRICA.. 25
17. CO-OPERATION WITH UKRAINE. 27
18. SITUATION IN KOSOVO.. 28
19. STABILITY PACT FOR SOUTH-EASTERN EUROPE. 29
LIST OF OPINIONS ADOPTED.. 32
II. Co-operation between the Commission and the
statutory organs of the Council of Europe, the European Union and other
international organisations. 34
- Co-operation with the Committee of Ministers. 34
- Co-operation with the Parliamentary Assembly of the
Council of Europe. 36
- Co-operation with other bodies of the Council of Europe. 37
- Development Bank. 38
- Co-operation with the European Union and other
International organisations. 38
III. Studies of the Venice Commission. 40
1. Guidelines on prohibition and dissolution of political
parties and analogous measures. 40
2. Self-determination and secession in constitutional law.. 42
3. Federated and regional entities and international treaties. 44
4. Electoral law and national minorities. 46
LIST OF REPORTS AND STUDIES
ADOPTED.. 49
IV. Centre on Constitutional
Justice. 50
V. The UniDem (Universities for
Democracy) Programme. 52
1. Seminar on “Federal and Regional States
in the perspective of European Integration” (Bologna, 18-19 March 1999); 52
2. Seminar on “The right to a fair trial” (Brno, Czech
Republic, 23-25 September 1999) 52
3. Seminar on “Societies in conflict : the contribution of
law and democracy to conflict resolution” (Bled, 26-27 November 1999) 53
4. Seminar on “The implementation of the new Constitution of
Albania” (Trieste, 13-14 December 1999). 54
5. Preparation of forthcoming seminars. 54
VOLUME
II - TEXTS OF OPINIONS ADOPTED (see
documentCDL-RA(99)002)
Opinion on
the compatibility of the death penalty with
the
Constitution of Albania .............................................................................................................
Opinion
on the scope of the responsibilities of Bosnia
and Herzegovina
in the field
of immigration and asylum with particular regard
to
possible involvement of the entities .............................................................................................
Opinion
on responsibilities for the conclusion and implementation
of
international agreements under the constitution of
Bosnia
and Herzegovina ................................................................................................................
Report
of the working group of the Venice Commission and the
Directorate
of Human Rights on Ombudsman Institutions
in Bosnia and Herzegovina .............................................................................................................
Preliminary
proposal for the restructuring of human rights
protection
mechanisms in Bosnia and Herzegovina .........................................................................
Opinion
on the reform of the judicial protection of human rights
in the
federation of Bosnia and Herzegovina ...................................................................................
Opinion
on the draft Civil Service Act of the Republic of Bulgaria ...................................................
Opinion
on the reform of the judiciary in Bulgaria ...........................................................................
Opinion
on the questions raised concerning the conformity
of the
laws of the Republic of Moldova on
local administration and
administrative
and territorial organisation to current legislation
governing
certain minorities ............................................................................................................
Interim
report on the constitutional reform in the Republic of Moldova ............................................
Opinion on
the draft law on the organisation of the
judicial
system of Ukraine..............................................................................................................
APPENDICES
- (see documentCDL-RA(99)003)
Appendix I - List
of Members
Appendix II - Offices and composition of the Sub-Commissions
....................................................
Appendix III - List of Meetings .....................................................................................................
Appendix
IV - List of Publications .................................................................................................
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VOLUME I
Presentation of the
Commission’s Activities
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PRESENTATION OF THE VENICE COMMISSION’S
REPORT OF ACTIVITIES FOR 1999
Mr Chairman, Ambassadors,
Ladies and Gentlemen,
I hardly need to recall that
this year marks the 10th anniversary of our Commission. You have all been invited to the celebrations
scheduled in Venice for
June 17. I hope that many of you will be able to join us there in view of this
special event.
Meanwhile, I have the privilege
of addressing, as I do every year, this distinguished Strasbourg audience.
May I take advantage of today’s occasion to evaluate, in your presence, how the
Venice Commission has
developed thus far and sketch, in addition,
our priorities for the future.
Let us look back. The Commission was set up within the
Council of Europe to provide a collective service of assistance on
constitutional matters for the democracies which would be arising from the
ashes of the Soviet bloc. It has been fulfilling its appointed tasks ever since
the eve of that turning point in history which was the breakdown of the hideous
divide of Europe into two opposite
camps. Our reputation as a highly qualified team of legal experts has been
firmly established. Our Commission has always been known to work in total
independence from the national governments by which its members are appointed.
It has come to be trusted as an impartial body of advisers who can help the
country concerned to settle constitutional questions, no matter how hard or
divisive, as far as possible in accordance with generally recognised European
standards. We are proud to have witnessed the advent of the rule of law and
democracy throughout our continent and we are grateful to have played a growing
role in this process, with the rise in membership and importance of the Council
of Europe where we belong. The thrust of our initial commitment was, to be
sure, participating in the constituent season of the emerging democracies. In
the course of the 1990s, democratic constitutions have been adopted by most
countries of central and eastern Europe and as a result we have been concerned
with their subsequent and often laborious implementation. Now we are
experiencing the first wave of constitutional amendments. In fact, a pressing
need for constitutional revision is clearly discernible in countries like Ukraine, Moldova and Armenia. Here
there is friction or outright conflict between the president and parliament and
the underlying issue is if and how their respective powers should be better
balanced by improving on the arrangements of the present basic text. Another
critical area in which the Commission has been involved is that of the
self-rule granted, on ethnical or other grounds, to certain territories within
unitary or even federal states, such as Kosovo, Bosnia
and Herzegovina, Crimea and
Transnistria.
Apart from all this, the
Commission has in several cases gone beyond a pure and simple advisory
function. To be more precise, it is frequently asked to interpret normative
texts already in force, rather than recommend or comment on the adoption of new
ones. Examples of this quasi-judicial kind are the Commission’s recent opinion
on the constitutionality of the death penalty in Albania and Ukraine, as
well as the controversial referendum called by the President of this latter
country. Once again, it is impartiality that counts to develop the Commission’s
potential in this new direction. Equally important is its ability to spell out
conveniently the common European standards on which it can rely to provide its
own reading of the text at hand. It is worth noting that such a Europe
centred approach to interpretation, and the resulting opinions of the
Commission, have been endorsed by the constitutional courts in the countries
whose legislation was at issue. This trend may lead to a fruitful spreading and
sharing of common constitutional values on the entire scale the Council of
Europe has acquired. And the best case in point is precisely afforded by the
judicial ban on the death penalty, since we can ascribe its generalisation to a
common European principle received, as it were, into all the national legal
systems.
The Commission’s role has
expanded, furthermore, in order to embrace questions on how to maintain peace
along with democracy. There are indeed situations in which these two values are
inseparable and must be jointly protected. The Commission has therefore been
called upon by the Council to explore and suggest by what kind of legal
engineering such a twofold guarantee of peace and democracy could be put into
place. This is the case with areas hit and torn by violence, whose democratic
future, once peace is restored, is bound to remain uncertain and require
effective prevention of setbacks. Now, working for the Council of Europe comes
within our statutory responsibilities. We have been honoured to co-operate with
its organs and this co-operation has become a welcome and natural duty,
particularly so, as our record shows, with the Parliamentary Assembly and the
Congress of Local and Regional Authorities. I would like to remind, if I may,
the Committee of Ministers too, and the Secretary General, that the Commission
is at their disposal whenever they think of making more use of its services.
We are within our remit
focussing on peace-keeping as a necessary condition of democratic security in
South East Europe. Actions to maintain stability in this sensitive area are
being carried out by different institutions. The Commission is of course aware
that such efforts should dovetail to avoid fragmentation and maximise
effectiveness. And to this effect, it is also co-operating with institutions
outside the Council of Europe. Close contacts with the Office of the High
Representative in Bosnia and Herzegovina,
UNMIK, ODIHR and the OSCE have been maintained and help to avoid needless
duplication of effort. With the European Commission I am pleased to report on
the conclusion of a Joint Programme, entitled « Strengthening democracy
and constitutional development in central and eastern Europe and CIS
countries ». The Venice
Commission very much appreciates this support, which will enable it to increase
its activities over the programme’s two year duration.
Moreover, the Commission is
active in the Stability Pact for South East Europe and at the end of last year
organised a conference in Slovenia on
« The contribution of constitutional arrangements for the stability of
South East Europe ». We have recently set up a Sub-Commission on South
East Europe to give this region the attention it deserves. Co-operation with Bosnia
and Herzegovina
continues to be a major focus of the Commission’s activities, particularly in
the context of its possible accession to the Council of Europe. Last year alone
we adopted four opinions and one report and have ongoing work on three other
issues. In the future, we will be looking principally at the fusion of the
Human Rights Chamber and the Constitutional
Court and at a re-orientation of the
activities of the Ombudsman towards more traditional ombudsman functions, such
as mediation, rather than pleadings before courts. Furthermore, in co-operation
with the Office of the High Representative, we will try to establish a State
Court of Bosnia and Herzegovina, - a federal court, conceivably, which would
deal with questions of administrative law, criminal law and electoral law at
the state level. In this connection, we will be organising a seminar on
federalism in Bosnia and Herzegovina later
this year with the German authorities.
Other ongoing assignments
include the legal system in Kosovo, the reform of the state institutions in Bosnia
and Herzegovina at the
end of the transitional period foreseen by the Dayton Agreement, the reform of
the legal system concerning minorities in Croatia and
the conformity of constitutional reform in Moldova with
the democratic standards of the Council of Europe.
There is another side to our
record, an important one that I cannot leave unnoticed here. The Commission has
taken on the added value of a permanent workshop on applied constitutional law,
on the legal techniques of democracy, though it also produces its own views and
proposals about transnational integration, most notably with regard to the
European case. We are keen on steeling ourselves as a think-tank that can
engage in research, reflection and debate, not in a purely academic sense, of
course, but to accomplish in-depth analysis of issues actually raised before
the Commission or likely to interest its work as an expert body. To serve this
purpose, we publish a number of reports and run the nourished series of UniDem
seminars, each conceived as a sort of common room for constitutional experts.
By these initiatives, we cover a number of salient topics in our field of
interest and try to read as lawyers the signs of our time. Suffice it to recall
the attention we have reserved to the problems of federalism, minorities and
European citizenship, and the emphasis laid on constitutional justice through
our Bulletin, database and the exchange of information in the meetings we
promote so that recently established courts may draw for their case-law on the
experience of their older counterparts.
In this as well as in other respects, the Commission is a
novel thing and has filled a void, for no comparable body existed previously.
The sheer number of its members amply demonstrates that there were good reasons
to create it and develop its role, as has been done. With the United Kingdom, Georgia
and Andorra alljoining recently, our number has risen to 40 from an initial figure of 18. But
it is not just in Europe that interest for the VeniceCommission has grown. We are happy to encourage links with non-European
countries wherever this may contribute towards promoting the values for which
the Council of Europe stands. It is a way of answering an outside, genuine
interest in Europe, of working for Europe by reason of what Europe means to
lawyers in other continents who cherish its world of constitutional values. The
Republic of Koreaobtained observer status with the Commission last year and the Secretary of
State for Human Rights of Brazil participated in a recent meeting. The VeniceCommission also concluded an agreement with the Association of Constitutional
Courts using the French Language – known as ACCPUF – to allow it to use the
structure of the Bulletin on Constitutional Case-Law and the CODICES data base
for its own journal and database. Furthermore, within the framework of its
programme with South Africa,the Venice Commission co-organised a
conference at the end of last year to review the development of
constitutionalism in Southern Africa over the past 40years. The conference looked at the possibility of creating a Southern
African Commission for Democracy and Constitutionalism, on the model of our own
Commission. We are currently helping this sister Commission to get off the
ground. It would provide a means to strengthen democracy in Southern Africa, propogate European values in that region and maintain a
link between our two continents. Indeed, had such a Commission already been set
up, it could possibly have been of assistance in the current crisis in Zimbabwe.Similar initiatives are also being considered by certain Latin American
countries that have long been interested in the Commission’s working methods
and achievements.
This inevitably leads to the
question of the revision of the Venice Commission’s statute, which has been put
on hold in the wake of the Wise Persons’ Report, to an enlarged partial
agreement. I hope that this issue can be tackled again in the near future, in order
that a satisfactory framework can be found to take the activities of the Venice
Commission forward during the next ten years and beyond.
Our priorities will be guided,
in the future as they have been in the past, by political priorities on our
continent. Thus, South East Europe and the Caucasian countries will remain the
focus of our energies in the foreseeable future. In terms of substance, we have
now entered a further stage of constitutional assistance, that of fine-tuning
the constitutions we helped to draft over the past ten years to the particular
requirements of individual countries. We will also devote the best of our
efforts to constitutional mediation, if and when, in the face of conflictual
situations, this is required of us as legal experts by the political
authorities that consult the Commission. We shall expand our initiatives in the
area of constitutional justice, which is essential to the very soundness and
growth of constitutional democracy on our continent. We shall not fail either,
I trust, to grow as a laboratory of blueprints for the ordering of democracy
and as a research centre we can put to fruition in fulfilling our duties. The
UniDem seminars we are running may develop into UniDem campuses, one of which
we expect to establish within the framework of the Stability Pact in Trieste to
serve for the training of lawyers and civil servants in South East Europe. Some
much needed help has already been earmarked for this initiative and we hope to
receive more in the near future. And our enduring priority, more in general,
remains, let me conclude, to go on deserving the encouragement we need and we
have always received from the Committee of Ministers, for which I wish to thank
you wholeheartedly. And once again, let me say how much I am looking forward to
seeing you in Venice at our forthcoming celebrations.
At the end of
1999, the Commission totalled 39 full members, 4 associate members and 9
observers.
Members
During
1999 the United Kingdom and Georgia acceded to the Partial Agreement. Mr Avtandil Demetrashvili, Chairman of the
Constitutional Court of Georgia and Mr Gela Bezhuashvili, Director, Department of
International Law, Ministry of Foreign Affairs, were nominated member and
substitute member in respect of Georgia. The United Kingdom has not yet nominated its member.
Mr Vital
Moreira, Professor, Law Faculty, University of Coimbra was appointed member in
respect of Portugal, replacing Mr Armando Marques Guedes whose mandate had
expired. Mr Pieter van Dijk, State Councillor,
Former Judge at the European Court of Human Rights, and Mr Erik Lukacs, former
Legal Adviser, Ministry of Justice member and substitute member in respect of
the Netherlands, respectively replacing Mr Godert Maas Geesteranus who
resigned his mandate.
In
addition, Ms Ivana Janu, Vice-President of the Constitutional Court of the Czech Republic was appointed substitute member in respect of the Czech Republic.
Mr Gaguik
Harutunian, Chairman of the Constitutional Court of Armenia was appointed
associate member in respect of Armenia, replacing Mr Khatchig Soukiassian.
Observers
The Republic
of Korea obtained observer status and nominated Mr Choi Dwa-Hwa,
Ambassador of the Republic of Korea to Belgium, Luxembourg and the European Union as its observer on the
Commission.
Mr
Yoshihide Asakura, Consul, Consulate General of Japan was appointed observer in respect of Japan replacing Mr Akira Ando.
In
addition, Mr Gregori, Secretary of State for Human Rights of Brazil participated
in the 41st Plenary Meeting.
He considered it important that Brazil should be involved in the Commission’s work and a
request for observer status should shortly be received.
The full list of members, associate members and
observers by order of seniority is set out in Appendix I to this report.
Sub-Commissions
No new
Sub-Commissions were created during 1999.
However, at its 39th Plenary Meeting the Commission set up a
Task Force on autonomy in crisis, as in the Balkans, and more
specifically Kosovo, Nagorno-Karabakh, Moldova,
etc., made up of members of the Commission with relevant experience.
The composition of the Sub-Commissions is set out in
Appendix II to this report.
ACTIVITIES
During 1999 the Venice
Commission continued its work on constitutional reform and the effective
functioning of democratic institutions.
The Commission was active on the whole continent but the conflict in Kosovo
and the consolidation of peace in South-East Europe were naturally a major part
of its work.
The strengthening of peace and democracy in those
areas affected by violence and with an uncertain democratic future are the
Commission’s political priority for the year 2000. The judicial system in Kosovo, the reform of
the State institutions in Bosnia and Herzegovina at the end of the transitional
period foreseen by the Dayton Agreement, the reform of the legal system
concerning minorities in Croatia and the conformity of constitutional reform in
Moldova with the democratic standards of the Council of Europe are the
Commission’s priority activities.
A short description of the Commission’s work in this
area (Part A) is followed by the list of some opinions which the Commission has
decided to make public (Part B). The
text of these opinions appears in Volume II.
Description of the Commission’s
activities
Compatibility of the death penalty with
the Albanian Constitution
Following
a request from the Parliamentary Assembly, the Commission drew up an opinion on
the compatibility of the death penalty with the Albanian Constitution. At the Commission’s 38th Plenary
Meeting, Ms Suchocka presented the opinion on the compatibility of
the death penalty with the Albanian Constitution which she had drawn up with Mr
Malinverni. The Albanian Constitution does not contain any express provision
authorising, prohibiting or abolishing the death penalty, but the overall logic
of the Constitution, Albania’s
international commitments and European standards in general all suggest that
the death penalty is incompatible with the Albanian Constitution.
In particular :
- the absence of an
explicit constitutional basis for allowing the death penalty;
At its 38th
Plenary Meeting the Commission adopted its opinion on this subject and decided
to forward it to the Parliamentary Assembly.
The text of this opinion is reproduced in Volume II.
At its 41st
Plenary Meeting the Commission was informed that the Albanian Constitutional Court decided that the death penalty was unconstitutional in
line with the Commission’s opinion. This
decision was welcomed.
Draft Law on the organisation and
functioning of the Constitutional Court
At the request of the Constitutional Court of Albania, the Commission
examined the draft Law on the Organisation and Functioning of the Constitutional Court, which had been elaborated by the members
of the Court. Messrs. Solyom, Bartole and Lopez Guerra were appointed
rapporteurs and presented written comments. On the basis of these comments, the
Court prepared a revised draft which was the subject of discussion at a meeting
between the Court and Messrs Bartole and Lopez Guerra in Tirana on 8 November 1999. The rapporteurs noted that many of their
comments had already been taken into account in this revised text and made
further suggestions for its improvement. At its 41st Plenary
Meeting, the Commission endorsed the results of the meeting of the Court with
the rapporteurs.
Law on the Supreme Court of Albania
At the request of the Albanian
authorities the Commission examined the law on the Supreme Court of
Albania. At the 39th Plenary
meeting, Mr Torfason reported on the meeting which had taken place in Tirana on
4-5 June with the Albanian authorities. Numerous
points concerning the composition of the Court, its division into chambers and
the role of the President of the Court had been addressed. Work on this question is continuing.
Reform of the electoral system in Albania
At the 38th Plenary Meeting the Secretariat
reported on a visit to Albaniawith a group of experts to discuss the planned electoral reform with the
Albanian authorities. The group had met Mr Imami, Albanian Minister for
Legislative Reform, and the officials who were working on the planned reform.
The aim of this project was to help Albaniato review the whole of its electoral law, which covered parliamentary
elections, local elections, the national Electoral Commission, electoral
procedure, referenda, the funding of elections, media and election campaigns.
The Albanian authorities were drawing up the relevant draft legislation, which
would be submitted to the Commission for examination.
* * * * * *
In addition, a UniDem Seminar on the implementation
of the new Albanian Constitution was held in Trieste on 13-14 December 1999.
The
Commission was kept up-to-date during the year and is still following the
progress on constitutional reform in Armenia.
A meeting had been held with representatives of the
Armenian Ministry of Foreign Affairs, who expressed the wish that the
Commission should put forward its comments on the draft for a new constitution,
which the Armenian constitutional reform commission was to submit at the end of
the year. However, the process of
constitutional reform has been delayed.
It is hoped that the Commission will be involved in this process early
in 2000.
A Seminar
on “Cases of conflict of competence between state powers before the Constitutional Court” was held in Erevan on 4-5 October 1999.
A seminar
on Regional autonomy was held in Baku on 22-23 April 1999.
Following the request made to the Secretary General
of the Council of Europe by Mr Ural Latypov, Deputy Prime Minister of the Republic of Belarus, the Commission was asked to provide an expert opinion on the draft
electoral law of Belarus. Prof. Richard Rose (Glasgow) and Mr Hans Birchler (Zurich) drew up an opinion on this question which was
forwarded to the Belarus authorities early in November.
Throughout 1999 the Commission continued its intense
and particularly fruitful co-operation with the authorities of Bosnia and Herzegovina, as well as with the institutions of the
international community in this country, on a vast programme of consolidation
of democratic institutions and State structures. Despite certain alarming, but sporadic,
events, the principal political forces in Bosnia and Herzegovina are at this moment showing sincere interest in
finding adequate solutions to lasting peace and democratisation. The international community contributes a
great deal to this process of consolidation and the Venice Commission is pleased to be able to play a positive
role in this operation.
The Commission was principally
involved in the implementation of a coherent and functioning federal regime.
Within this framework, the
Commission adopted at its 38th Plenary Meeting, an opinion on the scope of the responsibilities of Bosnia and Herzegovina in the field of immigration and asylum with
particular regard to possible involvement of the entities, drawn
up at the request of the High Representative.
The text of this opinion appears in Volume II.
In addition, at its 39th
Plenary Meeting the Commission adopted an opinion
on responsibilities for the
conclusion and implementation of international agreements under the
constitution of Bosnia and Herzegovina, again
drawn up at the request of the High Representative. In its opinion the Commission notes that,
under the Constitution, the State of Bosnia and Herzegovina is
responsible for foreign policy, but has few powers on the domestic front. Most international agreements would therefore
have to be implemented by the entities, which can conclude international
agreements with the consent of the Parliamentary Assembly of Bosnia and Herzegovina. Under these circumstances, co-operation
between the two entities and between the latter and the State of Bosnia and Herzegovina is
essential. The text of the opinion is
reproduced in Volume II.
Moreover, the final award of 5
March 1999 of the Arbitral Tribunal for
Dispute over Inter-Entity Boundary in Brčko area invited comments on the
arrangements proposed for the future Statute of the Brčko
District in the provisional Annex to the Award in order to finalise this Annex.
At the request of OHR a working group of the Commission prepared proposals for
amendments to this Annex. These proposals were forwarded by OHR to the Arbitral
Tribunal.
Following the adoption of the
revised Annex by the Arbitral Tribunal, the working group discussed with
representatives of OHR, including members of the staff of the Supervisor for
the Brčko
area, the contents of the future Statute of the area.
The Supervisor attended the
Commisison’s 41st plenary meeting and thanked the Commission for its
contribution.
Furthermore, the Commission
closely followed work on the electoral
law on Bosnia and Herzegovina. On the Commission’s behalf Messrs Owen and
Rose had drawn up observations on the draft law prepared by the working group
set up by the High Representative. Most
of the Commission experts’ comments were incorporated into the final text. Key aspects of the draft law include : the right to vote for displaced persons, an
open list system rather than the closed list system which currently exists, a
preferential voting system for the Presidency of the State of Bosnia and
Herzegovina, multi-member constituencies, limits on campaign expenses, a ban on
all paid advertising on broadcast media and a minority gender rule. One of the main concerns of the Commission’s
experts concerned the Electoral Commission, which they considered too
powerful. In response to this, the draft
law now provides that key decisions of the Electoral Commission can be reviewed
by a specific court. This specific court
would be fused with the State Court when it has been established. Messrs Owen and Rose gave additional opinions
on the final version of the draft electoral law. Mr Froment-Meurice, Chairman of the Electoral
Law Working Group, confirmed that these decisions would be taken into account
in the discussions before the Parliamentary Assembly.
The Commission also worked in
the field of institutional reforms in Bosnia
and Herzegovina. Bearing in mind that the judicial system of
human rights protection is extremely complex and taking into account the fact
that the transitional period in Bosnia and Herzegovina is coming to an end and
the provisional international institutions will soon have to be replaced by
Bosnian bodies, the Commission adopted at its 39th Plenary Meeting a
preliminary proposal for the
restructuring of human rights protection mechanisms. According to this proposal, at the end of the
transitional period provided for in the Dayton Agreements :
- the human rights Chamber should merge with the Constitutional
Court, which would assume
responsibility for the protection of human rights;
- the State of Bosnia and Herzegovina should
establish a separate judicial institution to deal with electoral matters and
administrative disputes and criminal cases ; and lastly
- the functions of the Ombudsperson should be redefined.
Concerning the Federation of
Bosnia and Herzegovina, the
Commission proposed that the Human Rights Court of the Federation should be
abolished. The text of the preliminary
proposal is reproduced in Volume II.
At the request of the High
Representative the Commission continued its work in the field of Ombudsman
Institutions. At its 39th
Plenary Meeting, the Commission approved the report of the Working Group on Ombudsman Institutions in Bosnia and
Herzegovina, which contains three draft laws on the Ombudsman Institutions
of the State and the two entities. These
drafts were presented to the appropriate legislative bodies during 1999. A Seminar was organised by the Commission in
co-operation with the Ombudsman of the Federation in Sarajevo in November in
order to encourage public debate on these drafts. The text of this report is reproduced in
Volume II.
Finally, at its 41st
Plenary the Commission adopted its opinion
on the reform of the judicial protection of human rights in the Federation of
Bosnia and Herzegovina which examines the concrete aspects of the proposed
constitutional amendment on the abolition of the Court of Human Rights of the
Federation. The text of this opinion is
reproduced in Volume II.
Draft Bulgarian Civil Service Act
At the request of the Parliamentary Assembly the
Commission examined the draft Bulgarian Civil Service Act. At the 38th Plenary Meeting,
Messrs Tuori and Herbiet (rapporteurs) presented the draft consolidated opinion
on this Act. They pointed out that their work had been based on a second
version of the Act, received by the Commission in January 1999. This version
contained a number of improvements in relation to the original draft, although
a number of issues had still not been resolved. The text did not indicate
clearly whether the proposed system was post-based or career-based, the basic
concepts and scope of the Act were not clearly defined and the powers granted
to the State Administrative Commission, responsible for monitoring public
administration, were too broad, which could lead to abuses of power and heavy
politicisation of the civil service.
Mr Gotsev, Bulgarian Minister of Justice, and Mr Djerov
informed the Commission that the text had been adopted at its first reading,
but that the changes proposed by the Commission could still be incorporated.
The Commission adopted the opinion on the draft Bulgarian
Civil Service Act and instructed the Secretariat to forward it to the
Parliamentary Assembly. The text of this
opinion is reproduced in Volume II.
Reform of the
Judiciary
At the request of the Parliamentary Assembly the
Commission examined the Bulgarian Judicial System Act. At the Commission’s 38th Plenary
Meeting the rapporteurs presented the draft consolidated opinion on the reform
of the judiciary in Bulgaria, in the presence of Mr Gotsev, Minister of Justice
with responsibility for European legal integration of Bulgaria.
The aim had not been to verify whether the Act was
constitutional, since the Constitutional Court had already done this through
its decision of 14 January 1999, but rather to consider whether it complied
with European norms. The main aspects which had prompted criticism were the
provision to replace the Supreme Judicial Council before its term of office had
elapsed, the method of electing the parliamentary component of the new Council
(by a simple majority vote) and the strengthening of the Minister of Justice’s
disciplinary powers. Although the provisions of the Act which had been
criticised by the Constitutional Court complied with European standards as far
as the independence of the judiciary was concerned, they increased the powers
of the Minister of Justice quite considerably. Consequently, the rapporteurs
recommended that these powers be exercised judiciously. Political consensus and
trust between the majority and opposition parties were necessary if the Act was
to be properly implemented and its provisions fully respected.
Mr Gotsev thanked the rapporteurs for their work and
assured the Commission that its comments would be given serious consideration
by the Bulgarian authorities. Nevertheless, he stressed that the Ministers of
Justice of other European countries enjoyed much greater powers than he did in
Bulgaria. The full immunity of judges, public prosecutors and investigators had
led to corruption and to a large number of cases which had not been dealt with
by the courts. The mere existence of the new disciplinary measures had already
helped to bring about a significant reduction in the number of such unresolved
cases. The political climate in Bulgaria ruled out co-operation between the
government and the opposition. He assured the Commission that the current
government would do its utmost to ensure that the provisions of the
Constitution and of current legislation were respected.
The Commission adopted the
opinion on the reform of the judiciary in Bulgaria and forwarded it to the
Parliamentary Assembly. The text of this
opinion is reproduced in Volume II.
In 1999 co-operation with Croatia continued in respect of the revision of the suspended provisions
of the 1991 Constitutional Law on Human Rights and Rights of Minorities and
with the participation of international advisers in the work of the Constitutional Court.
Revision of the Constitutional Law
On 29 April 1999, the Parliamentary Assembly, by its
Resolution 1185 (1999) on the honouring of obligations and commitments by
Croatia «regretted that little progress (had) been made by Croatia in honouring
commitments and obligations related to the fundamental principles of the
Council of Europe (democracy, rule of law and human rights) » and called
on the Croatian authorities, inter alia,
to « adopt a constitutional law revising the suspended provisions of the
1991 constitutional law … in compliance with the recommendations of the
Venice Commission and taking into account new realities, by the end of October
1999 at the latest ».
Following an invitation by Mrs
ZoricicTabakovic, Chair of the Council of National Minorities, Messrs G. Maas
Geesteranus and F. Matscher participated in a meeting of the Council of
national minorities in Zagreb, on 5 May 1999. During the meeting the urgency of
the revision was underlined and reference was made to the Memorandum addressed
by the Venice Commission to the Croatian Parliament in 1997 indicating the main
topics to be dealt with in the framework of the revision. These include the
status of the Council of National Minorities and other minority institutions,
the representation of minorities in the legislative bodies and the Government
and guarantees for educational and cultural autonomy. It was generally accepted
that the points set out in the Commission’s Memorandum could form the basis for
the revision. It was further stressed that early involvement of the Commission
in the preparation of the revision would make co-operation easier and more
effective. In this respect, the need was underlined to submit to the Commission
as soon as possible any draft amendments to the Constitutional law of 1991,
including provisions on the electoral rights of persons belonging to minorities.
The Director of the Governmental Office for Minorities indicated that work on
the revision was on-going, but no draft had been finalised so far. As soon as
finalised, the draft would be sent to the Venice Commission and to the Council
of National Minorities for consideration.
However,
no draft material was forwarded to the Commission until December 1999 and at
its 41st Plenary Meeting the Commission concluded with regret that
no significant progress had been made in this respect since the Commission
forwarded its memorandum on the revision to the authorities of the Republic of
Croatia (June 1997), despite the relevant commitment of Croatia and the
declarations of Croat officials.
Participation of international advisers in the work of the Constitutional
Court
In accordance with the commitments undertaken by Croatia,
international advisers appointed by the Committee of Ministers of the Council
of Europe participated in the work of the Constitutional Court of Croatia in
cases concerning rights of minorities. The Constitutional Court invited the
advisers to participate in five cases concerning legislation on property,
access of persons belonging to minorities to civil service and minority
language education. The advisers participated in the preparatory meetings and
in hearings and deliberations.
On 8 November 1999, the Court gave its decision in the
cases concerning minority language education, repealing the challenged acts
which were found unconstitutional for lack of sufficient clarity. In their provisional
opinion the international advisers expressed the view that the challenged acts
were unconstitutional. The repealed acts shall cease to be in effect as from 30
June 2000. According to the information received by the Court’s registry, the
remaining cases in which the advisers are involved are to be decided in 2000.
At the
request of the Georgian authorities, the Commission examined the draft
amendments to the Organic law on the Constitutional Court of Georgia. At the 38th Plenary Meeting, the
rapporteurs presented their comments on this question. In particular, they mentioned several
provisions of the laws which could raise serious difficulties :
- the
procedure allowing the Court to give subsequent interpretations of its
decisions could undermine the principle of “res
judicata”. The Court’s decisions should be final;
- if
this procedure was retained, the time limit for requesting that the Court
interpret one of its decisions, which must not exceed one month, was
unjustified. Questions of interpretation could emerge much later in the context
of other cases;
- dissenting
opinions should be made public together with the Court’s decision;
- the
Court’s decisions should not take effect immediately, but at the time of
publication.
Mr Demetrashvili thanked the rapporteurs for their
comments. He thought that the provision allowing the Court to interpret its
decisions should be retained. He also mentioned the problem of the execution of
the Court’s decisions. Under the Court's practice, several days usually elapsed
between the taking of the decision and its publication. This explained the
provision that the Constitutional Court’s decisions should take immediate
effect.
The
Rapporteurs’ written comments were forwarded to the Georgian authorities.
In addition, a
seminar on Constitutional control in Federal and Unitary States was held in
Batumi on 1-2 July 1999.
At its 39th
Plenary Meeting, the Commission held an
exchange of views with Mr Kim, President of the Constitutional Council of
Kazakhstan. Mr Kim informed the
Commission about developments in his country in the constitutional sphere.
At the 40th Plenary
Meeting, Mr Endzins, on behalf of the Latvian
Constitutional Court, asked the Commission
to appoint rapporteurs to consider the draft amendments of the Constitutional
Court Law prepared by the judges of the court.
The purpose of these amendments was to give the State Human Rights Bureau,
ordinary courts and individuals standing before the court. The Commission requested Messrs. Solyom,
Klucka, Lavin and Schwartz to draw up an opinion on this question.
At the 41st Plenary
Meeting the rapporteurs presented their comments. The amendments introduce
constitutional review in individual cases and favour a written procedure rather
than the oral procedure which currently exists. Mr Solyom identified three main
areas of concern : the fact that the amendments would allow judges of the
Constitutional Court to be removed by an external power (the legislature)
rather than the court itself; the extension of the powers of the President of
the Constitutional Court, with the possibility for the president to compose
panels of judges in each case; and the time at which the annulment of a norm by
the Constitutional Court becomes effective: at present it is when the decision
is pronounced, rather than when it is published, which goes against the
principle of legal certainty.
Mr Endzins thanked the
rapporteurs for their work. A new draft was currently being produced on the
basis of the different comments received from the Commission and other experts.
Upon Mr Endzins’ request, it was agreed that a seminar would be organised with
the Latvian Constitutional Court in February
2000 on the issues raised by the amendments.
Laws on territorial organisation and on local authorities
Following a request from the Parliamentary Assembly’s
Monitoring Committee and from the Moldovan authorities, the Commission was
invited to examine the laws on territorial organisation and on local
authorities. The Secretariat drew up a series of preliminary observations in
the form of a memorandum. As the Congress of Local and Regional Authorities of
Europe was also considering this question and a report on the subject had been
drawn up, the Congress was co-operating with the Commission on this
subject. A delegation made up Commission
members and experts from the Congress had visited Moldovain May 1999.
At its 39th Plenary
Meeting the Commission held an exchange of views with Mr Eugene Rusu, Chairman
of the Legal Affairs Committee of the Moldovan Parliament. Mr Rusu said that
the two laws examined, ie the law on local authorities and territorial
organisation and the law on public administration, were part of the
administrative and territorial reform under way in Moldova. This reform had long been necessary and when
drafting the law, the authorities had taken time to consider the provisions of
the European Charter of Local Self-Government, local traditions and economic
realities in Moldova. Mr Rusu referred in particular to the
situation in Taraklia, saying that communities and municipalities in the region
would enjoy greater autonomy under the new set-up. The opposition to reform in Taraklia was
coming from local politicians fearful of losing influence. Despite some difficulties and a heavy
workload, the Moldovan authorities would manage to establish the new
institutions with due regard for the recommendations made by the Commission and
the Congress of Local and Regional Authorities.
At the same meeting, Mr Tuori
presented the opinion drawn up on the basis of a Secretariat memorandum on the
results of a Commission delegation’s visit to Moldova in May 1999. He believed that the Moldovan authorities and
the Gagauz community were moving towards co-operation and were willing to
resolve their problems through negotiation, and that the conflict of rank
between the law on the special status of Gagauzia and the law on public
administration, given that both laws were institutional acts, could be settled
by applying the lex specialis
rule. With regard to the Bulgarian
minority, the members of the Commission delegation had not managed to meet
representatives of this minority but according to information received, there
was no evidence of any obvious violations of the Framework Convention for the
Protection of National Minorities, or any other Council of Europe instruments
concerning the rights of minorities.
At its 40th Plenary Meeting the Commission adopted the
draft opinion on the questions raised concerning the conformity of the law on
local administration and territorial organisation and of the law on local and
public administration with the legislation currently in force concerning
minorities drawn up on the basis of the comments of the rapporteurs, and
decided to forward it to the Parliamentary Assembly and to the Moldovan
authorities.
The text of this opinion is
reproduced in Volume II.
Constitutional reform in Moldova
At the request of the
Parliamentary Assembly and the Moldovan authorities, the Commission monitored
the process of constitutional reform in Moldova. At its 39th Plenary Meeting the
Commission examined the draft proposed by 39 members of the Moldovan
parliament. Mr Moreira presented his comments and observed that the proposal
for reform submitted to the Commission by the parliamentarians seemed to comply
with democratic principles and European standards in such matters. He suggested that the Commission continue to
co-operate with the Moldovan authorities in this area.
A Commission delegation travelled, in September, to
Moldova, to discuss in particular a different draft for a constitutional
revision, prepared by the Presidential Constitutional Commission. This draft had the aim of introducing a
presidential system of government in Moldova.
A further meeting took place in Venice 16 October,
following the Commission’s 40th Plenary Meeting, with the representatives
of both the constitutional committee set up by the President of the Republic
and members of the parliament. Just the
organisation of this meeting represented a success, since it implied that a
mutually agreed solution to the question of the constitutional revision was
being sought.
At its 41st Plenary
Meeting, the Commission examined the interim report drawn up on the basis of
the rapporteurs’ comments. The Commission emphasised that the criticism
expressed by the experts with respect to the draft proposal by the
Constitutional Commission concerned the text of the draft as a whole. Certain
provisions of the draft would be acceptable if taken alone but presented a
serious problem if combined with other articles. The experts considered that the
principle of the separation of powers was not fully respected and there
was a lack of checks and balances between the executive power and the
Parliament.
The Commission adopted the interim report on
constitutional reform in the Republic of Moldova and decided to annex to it the
comments of the Moldovan authorities and to transmit it to the Parliamentary
Assembly. The text of this report is
reproduced in Volume II.
Moreover, the Commission welcomed the decision of
the Moldovan authorities to create a joint working group of the Constitutional
Commission and the Parliament which would be in charge of elaborating a single
draft of the constitutional reform. The
Commission is continuing its co-operation with the Moldovan authorities in this
field during 2000.
* * * *
* *
In addition a Seminar on “The
role of the Constitutional Court in the protection of private property” was
held in Chisinau on 30-31 March 1999.
12. COOPERATION
WITH MONTENEGRO (FEDERAL
REPUBLIC OF YUGOSLAVIA)
On 20 October, the President of the Commission and
members of the Secretariat held an exchange of views with a delegation from the
Republic of Montenegro concerning the possibilities of co-operation with the
Commission.
The following areas were identified as suitable for
further possible co-operation :
- the protection of minorities
- the setting-up of an Ombudsman
- constitutional justice
At its 39th Plenary
Meeting the Commission held an exchange of views with Mr Seixas da Costa,
Portuguese Secretary of State for Foreign Affairs. Mr Seixas da Costa believed
that legal co-operation was a very important area within the Council of Europe
and that it was instrumental in finding joint solutions to crises in Europe. The important task of promoting democratic
values demanded that the Council’s remit extend beyond Europe. The Venice Commission, as a body made up of
independent legal experts, could assist in this process. Mr Seixas da Costa wanted the Commission to
be more autonomous and requested that its statute be amended so that
non-European countries could play a greater part in its activities.
At the 41st Plenary
meeting, Mr Klucka informed the Commission about the special parliamentary
working group which had been set up in March 1999 to prepare the amendment of
the Constitution. The amendments would be important. The first Slovakian
Constitution had been prepared in only three months in 1992 and practice had
since revealed a number of weaknesses. The final draft would be ready in
January 2000 and members of parliament might request the Commission to comment
on it.
Some of the key changes
proposed include a new regulation of the relationship between international and
domestic law, a confirmation of the extent of the powers of the Constitutional
Court, a reduction in the possibilities for individuals to bring cases before
the Constitutional Court (only constitutional complaints would still be
possible), regulation of emergency situations and the introduction of a
Judicial Council to propose judges for the ordinary courts. An amendment had
been made to the Constitution in March 1999, providing for the direct election
of the President of the Slovak Republic.
In
co-operation with the Ministry of Foreign Affairs of Slovenia the Commission
organised a UniDem Seminar on “Societies in conflict : the contribution of law
and democracy to conflict resolution” in Bled on 26-27 November. This was followed by a Conference on “The contribution of constitutional arrangements to
stability in South Eastern Europe” which took place in Brdo on 29-30 November
(see also Point 19 below).
i) « Democracy, from the law book to real life »
The Commission continued to implement activities
within the framework of the programme « Democracy, from the law book to
real life », which is funded by the Swiss Federal Department of Foreign
Affairs.
A conference entitled « Intergovernmental
relations and co-operative governance : fostering mutual
co-operation » took place in March. The aim of
the conference, which was opened by Deputy President Thabo Mbeki, was to
evaluate intergovernmental relations over the past five years in the presence
of the relevant players. The conference was well attended at a very high level.
Participants included national, provincial and local government
representatives, members of executive councils in the provinces (MECs) and the
National Council of the Provinces (NCOP) as well as academics and other
interested parties. It is an activity which the Department of Constitutional
Development, now the Department for Local and Provincial Government, hopes to
repeat on an annual basis.
Another conference was
organised in November on the theme of “African renaissance”. The aim of this
conference was to discuss democracy and constitutionalism in Southern Africa
over the past 40 years and to look at the possibility of strengthening
co-operation in this field through the establishment of a Southern African Commission for Constitutionalism and
Democracy, along the lines of the Venice Commission in Europe. Delegates from
different African countries attended the conference, in particular from member
states of the Southern African Development Community (SADC). Further to the
resolution which was adopted at the end of the conference, the South African
authorities undertook to take the initiative forward
Other activities which were carried out included:
- a
study visit for the Director of the South African Constitutional Court to the
European Court of Human Rights and the Bundesverfassungsgericht
(Germany) to look at effective court administration;
- a
study visit for officials from the Department of Constitutional Development to Italy, Spain and Switzerland to look at provincial government in those countries
- a
conference on open and democratic government, organised by the South African
Human Rights Commission;
- a
workshop on the role of district councils in local government;
- a
workshop for provincial officials organised by the Cape Administrative Academy on the constitutional state and public administration,
with reference to provinces;
- four
research scholarships for lecturers from the University of South
Africa to Europe on:
§
Transparency in the public
service: its ethical dimensions and implications – lessons from Europe;
§
Informatisation and public
administration: quo vadis democracy;
§
Developing diplomacy in a
changing international political system;
§
Constitutional provisions and
institutions which could enhance economic development in South Africa and the Southern African region.
- participation by South African experts
in conferences on:
§
Constitutional
culture, organised by the Polish Centre for Constitutionalism and Legal Culture
of the Institute of Public Affairs;
§
“Federal and
regional states in the perspective of European integration”, organised within
the framework of UniDem programme in Bologna, Italy;
§
16th
meeting of the Sub-Commission on Constitutional Justice in Liechtenstein;
§
"The right to a fair trial", organised
within the framework of the UniDem programme in Brno, Czech Republic.
In addition, publications of the Commission and the Council of Europe on
constitutional and administrative law were sent to all provincial
administrations in South Africa.
ii) Chairs in Intergovernmental Relations and Co-operative
Governance
The Chair at the University of Natal continued to function
throughout 1999. It organised a workshop on « The reality of
intergovernmental relations : environmental management and local water
services », which brought together
representatives from national government as well as representatives from local
and provincial government, NGOs and community organisations from Kwa-Zulu
Natal. It provided an opportunity to reflect on co-ordination between the
different spheres of government in practice and how this co-operation could be
improved. Experts from Spain and Italy provided valuable input on the
experience of their countries in managing decentralised government.
The University of Fort Hare, where the second Chair
was established, experienced serious management and financial difficulties
during 1999. As the holder of the post of Chair was called upon to act as
Vice-Chancellor of the University during the process of restructuring, the
activities of the Chair were de facto
suspended for most of the year. It is hoped that they can be resumed in the
year 2000.
Although support for the Chairs within the framework
of the programme funded by Switzerland was due to finish at the end of 1999, it
was agreed to postpone the deadline until the end of the year 2000.
Draft
law on the organisation of the judiciary
At its 38th Plenary meeting the Commission
discussed possible follow-up to the Parliamentary Assembly’s request for an
opinion on the role and functioning of the courts and Public Prosecutor’s Office
in Ukraine. It noted that there were currently several bills dealing with these
issues and that it was difficult to say which of these could be used as a basis
for discussion. In view of the complex
situation in Ukraine, the reform process was very slow despite the stipulation
in the transitional provisions of the Constitution that the judicial system
should be reformed within five years. Several members proposed that the subject
be left to one side until the bills on the judicial system and the public
prosecution service had been given a first reading.
At its 40th Plenary Meeting the Commission was
informed that the draft law on the organisation of the judiciary had been
received. Messrs Svoboda, Torfason, Said
Pullicino and Ms Suchocka were appointed rapporteurs on this draft law. At it
41st Plenary Meeting, the Commission considered the opinions
prepared by the rapporteurs and proposed that the Secretariat draw up a summary
report, focussing on general principles rather than specific issues. Mr Holovaty thanked the rapporteurs for their
work.
The text of this summary report is reproduced in Volume
II.
Law governing
parliamentary elections
At its 40th Plenary Meeting the
Commission was informed that the Ukrainian authorities had requested an expert
opinion on the law governing parliamentary elections, the adoption of which was
one of the commitments made by Ukraine when it joined the Council of Europe. This task had been entrusted to the
Commission, which had requested two expert opinions, one from
Mr Florian Grotz (Heidelberg), the other from Mr Michael Krennerich (Hamburg). The
opinions were forwarded to the Ukrainian authorities.
* * * * * *
In
addition, the following seminars and workshops were held in Ukraine during 1999 :
- Workshop on the relationship between
the Constitutional Court and the Ombudsman (Kiev, 1-2 July 1999);
- Seminar on the execution of decisions
of the Constitutional Court (Kiev, 28-29 October 1999);
- Conference of Secretaries General of
European Constitutional Courts and jurisdictions of equivalent competence
(Kiev, 25-26 November 1999).
Following its involvement in the drafting of the
various texts for a political settlement prepared by the Contact Group, the
Commission was invited to be represented at the Rambouillet and Paris peace
conferences. Mr Scholsem, Chairman of the Commission’s working group, attended
a part of the negotiations and a secretariat member was present during both
conferences as legal adviser to the EU negotiator, Ambassador Petritsch.
Immediately following the
establishment of UNMIK administration within Kosovo, Mr Russell, a Commission
expert from Ireland took part in the very first fact-finding missions to Kosovo
and in the drafting of recommendations on the organisation of the judiciary.
The legal adviser of UNMIK, Mr
Anthony Miller, furthermore asked the Commission to start examining legal
aspects of the establishment and functioning of a Kosovo Assembly during the
transitional period. A team of members of the Commission’s working group went
to Kosovo on 10 to 14 November 1999 to get more information about the situation
and the views of UNMIK and local representatives. The study is underway.
In addition, at the request of
the Special Representative of the Secretary General of the United Nations in
Kosovo, a joint Working Group of the Commission and the Directorate of Human
Rights of the Council of Europe was established to draft the regulation on the
Ombudsman for Kosovo in cooperation with the Ombudsman Support Unit of the OSCE
Mission in Kosovo. The Commission is particularly satisfied with the strong
cooperation established between the Working Group and the OSCE in this area.
The Working Group held its first
meeting, including an exchange of views with members of the local communities,
in Pristina in September. The draft regulation, concentrating on the
competences of the Ombudsman with regard to human rights violations and
maladministration, was completed at two further meetings in Paris and
Strasbourg. The Working Group placed particular emphasis on the possibility for
the Ombudsman to make recommendations both to the international administration
in Kosovo and to local authorities. The draft regulation was submitted to UNMIK
in November. Work is continuing towards the adoption of the regulation in 2000.
Furthermore, the draft
Regulation on Municipal Elections prepared by OSCE was discussed at a meeting
in Strasbourg on 20 December 1999. A representative
of the Congress of Local and Regional Authorities of Europe participated in the
discussions.
At its 41st Plenary
Meeting the Commission held an exchange of views on the Stability Pact with Ms
Magdelena Tovornik, Permanent representative of Slovenia to the
Council of Europe (see Co-operation with Committee of Ministers below).
With this in mind a new Sub-Commission on South-East
Europe has been set up and its work will commence early in 2000.
- Conference
on “The Contribution of constitutional arrangements for the stability of South
East Europe” ‘Brdo., Slovenia, 29-30 November 2000
The International Conference “The Contribution of
Constitutional Arrangements to the Stability of South Eastern Europe” took
place on 29 and 30 November 1999 in Brdo, Slovenia. The Conference was
co-organised by the Ministry of Foreign Affairs of the Republic of Slovenia,
the Faculty of Law of the University of Ljubljana and the Venice Commission.
The Conference was held within the framework of the Working Table for
Democratisation and Human Rights of the Stability Pact for South Eastern Europe
as one of the first contributions within the said Working Table.
Representatives of states and international organisations as well as
independent experts participated in the Conference. Mr Bodo Hombach, Special
Co-ordinator of the Stability Pact for South Eastern Europe, addressed the
opening session of the conference.
The Conference dealt with two
main themes, namely the Effectiveness of the Constitutional Human Rights
Standards and the Constitutional Framework for Repartition of Powers.
With respect to the Effectiveness
of the Constitutional Human Rights Standards, it was stated that
international human rights standards need to be integrated into national legal
orders and implemented and protected by national institutions. The importance
of the inclusion of specific minority rights at the highest, i.e.
constitutional level, was emphasised. Integration of minorities needs to be
secured through their involvement in decision-making at all levels. Protection
of minorities can be addressed through various models of autonomy.
Generally, the view was
expressed that in many countries the practical situation regarding human rights
falls short of the theoretical standards. Differences exist between the
guarantees in texts, such as constitutions and laws, and the practice. A number
of general proposals to help overcome this gap between the normative and the
actual situation were identified.
An increasing emphasis should
be placed on education, training and public awareness programmes in the field
of human rights and constitutional law. Such efforts should be aimed at the
general public, lawyers and judges as well as police and security forces. The
importance of the training of judges, including raising of awareness on human
rights standards, was emphasised repeatedly. Also, improvement of the
facilities available is necessary, such as better access to court reports and
legal materials. States, international organisations and the Stability Pact
should provide financial contributions in support of the functioning of the
judicial system in countries with difficulties.
The discussions emphasised the
importance of considering to establish national human rights institutions (i.e.
extra-judicial means to improve the protection of human rights), such as
ombudsmen and human rights commissions.
With respect to the Constitutional
Framework for Repartition of Powers, the need was stressed to have very
precise constitutional rules on the powers of the various institutions.
Otherwise, the former system of unity of power risks creeping back through the
gaps in the present rules. A balanced relationship between the two branches of power
is necessary for a more democratic, accountable and stable political life in
these countries.
In this context, participants
emphasised the important role of the constitutional court and welcomed the
strong position given to such courts by constitutions in this region. Such
courts will however only be able to play their role fully if parliaments and
politicians in general accept as a matter of course that their decisions have
to be implemented.
Participants were unanimous in
underlining that judicial independence nowadays constitutes the core of
separation of powers. Judicial independence is a prerequisite of the rule of
law. Participants also stressed conditions guaranteeing functional independence
of the judiciary. They mentioned in particular issues such as the terms of
office of judges, their immunity, the incompatibility of judicial with
political functions and, not least, the economic independence of judges and the
allocation of sufficient budgetary means to the courts on the basis of
objective criteria. All states have to fully respect the standards developed in
the case law of the European Court of Human Rights in this respect.
In addition, an independent
council of the judiciary, to which decisions on appointments, promotions and
transfers of judges as well as disciplinary proceedings are reserved, has
proved a particularly efficient tool of preserving judicial independence.
Participants pointed out that such a council can fully exercise this role only
if its composition provides for adequate representation of judges elected by
their peers.
Participants further underlined the importance of
local self-government for the development of democracy in the region. They welcomed the fact that the South-East
European Council of Europe member States have ratified the European Charter of
Local Self-Government and called for its full implementation. Constitutions
should make reference to the principle of local self-government and there
should be limits to the control of municipalities by higher bodies. In practice
the budgetary autonomy of the municipalities and the allocation of adequate
funds to them are of particular importance.
The text of these opinions appears in Volume II.
ALBANIA
- Opinion
on the compatibility of the death penalty with the Constitution of Albania
(CDL-INF (99) 4) adopted by the Commission at its 38th Plenary
meeting (Venice, 22-23 March 1999);
BOSNIA AND HERZEGOVINA
- Opinion
on the scope of the responsibilities of Bosnia and Herzegovina in the field of
immigration and asylum with particular regard to possible involvement of the
entities (CDL-INF (99) 6) adopted by the Commission at its 38th
Plenary meeting (Venice, 22-23 March 1999);
- Opinion
on responsibilities for the conclusion and implementation of international
agreements under the constitution of Bosnia and Herzegovina (CDL-INF (99) 9)
adopted by the Commission at its 39th Plenary meeting (Venice, 18-19
June 1999);
- Report
of the working group of the Venice Commission and the Directorate of Human
Rights on Ombudsman Institutions in Bosnia and Herzegovina (CDL-INF (99) 10)
adopted by the Working Group at its meeting in Paris on 11 May 1999 and
approved by the Commission at its 39th Plenary meeting (Venice,
18-19 June 1999);
- Preliminary
proposal for the restructuring of human rights protection mechanisms in Bosnia
and Herzegovina (CDL-INF (99) 12) adopted by the Commission at its 39th
Plenary meeting (Venice, 18-19 June 1999);
- Opinion
on the reform of the judicial protection of human rights in the federation of
Bosnia and Herzegovina (CDL-INF (99) 16) adopted by the Commission at its 41st
Plenary Meeting (Venice, 10-11 December 1999);
BULGARIA
- Opinion
on the draft Civil Service Act of the Republic of Bulgaria (CDL (99) 14)
adopted by the Commission at its 38th Plenary meeting (Venice, 22-23
March 1999);
- Opinion
on the reform of the judiciary in Bulgaria (CDL-INF (99) 5) adopted by the
Commission at its 38th Plenary meeting (Venice, 22-23 March 1999);
MOLDOVA
- Opinion
on the questions raised concerning the conformity of the laws of the Republic
of Moldova on local administration and administrative and territorial
organisation to current legislation governing certain minorities (CDL -INF (99) 14 adopted by the Commission at its 40th Plenary meeting (Venice,
15-16 October 1999);
-
Interim report on the constitutional reform in the
Republic of Moldova (CDL (99) 88) adopted by the Commission at its 41st
Plenary meeting (Venice, 10-11 December 1999);
UKRAINE
-
Opinion on the
draft law on the organisation of the judicial system of Ukraine (CDL-INF (2000) 5 drawn up by the Secretariat on the basis of the rapporteurs’ comments
Representatives from the
Committee of Ministers participated in all the Commission’s plenary meetings
during 1999.
At its 38th Plenary
Meeting, the Commission held an exchange of views with Mr Sten Lundbo,
Permanent Representative of Norway to the Council of Europe and Chair of the
Rapporteur Group on relations between the Council of Europe and the European
Union, who reported on the progress of work at the quadripartite meetings. The
European Commission was very interested in co-operating with the Council of
Europe and the Venice Commission, especially in the programmes of assistance
for Albania, the Russian Federation, Ukraine and the Transcaucasian Republics,
and in activities relating to the promotion of human rights, the fight against
corruption and media independence.
The 38th Plenary
Meeting was also attended by Mr Alfred Rüegg, Permanent Representative of
Switzerland to the Council of Europe, who said that the Committee of Ministers
valued the impartiality of the Venice Commission’s work. The Commission was
among those Council of Europe bodies which promoted the values of the
organisation far beyond the borders of Europe. The Committee of Ministers was
currently considering how the Commission might now be made more flexible. As
far as Switzerland was concerned, Mr Rüegg pointed out that his country was
helping fund the Commission’s co-operation programme with South Africa and that
his government would be prepared to continue supporting this project in the
future.
At the 39th Plenary
Meeting, Mr Josef Wolf, Permanent Representative of Liechtenstein to the
Council of Europe, reported that the Committee of Ministers had studied the Venice
Commission’s annual report with keen interest.
The document had met with a warm response from the Committee of
Ministers. Mr Wolf believed that the
Commission’s work should be given greater media exposure. He was pleased that Liechtenstein’s
voluntary contribution of FRF 100,000 had helped cover the travel expenses
of the central and eastern European members, because pan-European participation
in the Commission’s activities was essential.
Mr Wolf informed those present about activities in the field of
confidence-building.
At the same meeting, Mr Olexandre Koupchyshyn,
Permanent Representative of Ukraine to the Council of Europe and Chairman of the
Rapporteur Group on Legal Co-operation, said that legal co-operation was one of
the main priorities of the Council of Europe. He told the Commission how the
Council of Europe was being restructured following the Committee of Wise
Persons report. The Rapporteur Group on Legal Co-operation was currently
working on several important topics including the question of which authority
would be responsible for interpreting Council of Europe Conventions, relations
between the Committee of Ministers and the Parliamentary Assembly, the European
code of conduct on arms sales and legal co-operation with non-European states.
Mr Koupchyshyn also spoke about the situation in Ukraine and in
particular the problems involved in honouring the commitments entered into by
his country on joining the Council of Europe.
His country attached great importance to co-operation with the Venice
Commission.
At its 40th Plenary Meeting, The Commission
had an exchange of views with Mr Sveinn Bjornsson, Permanent Representative of Iceland to the
Council of Europe and Chairman of the Ministers' Deputies, Mr Justin Harman,
Permanent Representative of Ireland to the
Council of Europe, and Mr Igor Grexa, Chargé d'affaires a.i. of Slovakia to the
Council of Europe.
Mr Bjornsson gave a brief description of activities
during the Icelandic chairmanship. Stability in Europe was
one of the main objectives during the Icelandic chairmanship. The Council of Europe was playing a full part
in the developments in south-east Europe,
particularly since the drawing up of the European Union's Stability Pact, and
had thus been represented at the Sarajevo summit
at the end of July.
It was during the Icelandic
chairmanship that the Committee of Ministers had had the opportunity to welcome
Mr Walter Schwimmer, the new Secretary General of the Council of Europe.
The main areas of activity of the Council of Europe
were human rights and the rule of law, areas in which the Venice Commission
played a particularly important role. Mr Bjornsson emphasised that the
Committee of Ministers was unanimous in its appreciation of the work of the
Commission.
Mr Harman, who would be taking over the chairmanship of
the Ministers' Deputies in November, said that closer co-operation with the
Commission would be an aim during the Irish chairmanship, particularly on the
preparation of the UniDem Conference in Dublin.
He outlined the main activities foreseen during the Irish
Presidency.
Relations with the European Union would be important
in the context of the development of the future role of the Council of
Europe. The draft Charter of Fundamental
Rights was currently under discussion at the Tampere Summit, but a number of
decisions on the Charter had not yet been taken. The Committee of Ministers
hoped that the Charter would not duplicate, or reduce the role of, the European
Convention on Human Rights.
Mr Grexa said that the Committee of Ministers was
well aware of the work of the Commission, but that information ought to be
disseminated more widely in the outside world.
It was no longer actually possible to deal with democracy just at
national level, or even to keep to the regional level, without taking an
interest in the other regions of the world.
At the 41st Plenary
Meeting the Commission held an exchange of views with Ms Magdelena Tovornik,
Permanent Representative of Slovenia to the Council of Europe who confirmed the
support of the Committee of Ministers for the Venice Commission’s work.
She referred to the two
activities which Slovenia had recently hosted: a UniDem seminar on “Societies
in conflict: the contribution of law and democracy to conflict resolution”
which took place in Bled and an international conference on “The Contribution
of constitutional arrangements for the stability of South East Europe” which
was held in Brdo. She stressed that the conference would need to be followed-up
and stated that the role of the Commission in this would be important (see
point Stability Pact above)
The 41st Plenary meeting was also attended by
Mr Jacques Warin, Permanent Representative of France to the Council of Europe,
who informed the Commission about the activities of the Working Group of the
Committee of Ministers on information policy. He noted that the Working Group
was paying special attention to the problem of the elaboration of an effective
information policy at the Council of Europe in general and presented the latest
proposals of the group.
Mr Warin suggested that the Commission could also improve
the visibility of its work, for example, by publishing on a regular basis a
special gazette describing its activities and creating an Internet site, where
most of its documents would be available to the public. He also invited the
Commission to consider the possibility of having a spokesperson, who could
inform the press and general public about the Commission’s work.
The Commission continued and intensified its close
co-operation with the Parliamentary Assembly during 1999. Representatives from the Assembly were present
at all the Commission’s Plenary Meetings.
At its 38th Plenary Meeting, the Commission
held an exchange of views with Lord Russell-Johnston, President of the
Parliamentary Assembly of the Council of Europe. He stressed that the
Parliamentary Assembly respected and was grateful for the work of the Venice
Commission, which was often extremely difficult but always invaluable. Many items on the agenda of the Commission’s
meeting were very similar to subjects discussed by the Bureau of the
Parliamentary Assembly. Bosnia and Herzegovina was one such subject. He was
concerned about the situation in the Republika Srpska and informed the
Commission that an Assembly delegation would be visiting Bosnia and
Herzegovina. He also mentioned Kosovo, a subject of great concern to the whole
international community. Regretting the lack of progress in negotiations
between the parties, the President of the Parliamentary Assembly thanked the
Commission and its team of experts for their excellent work in Rambouillet and Paris.
The Commission should remain an impartial, independent body and its role should
be strengthened in accordance with the report of the Committee of Wise Persons.
In reply, Mr La Pergola
emphasised that co-operation between the Venice Commission and the
Parliamentary Assembly was very active. As an independent body comprising
eminent legal experts from the member states, the Commission played a vital
role in helping member and applicant states to uphold the principles of the
rule of law and in promoting the values defended by the Council of Europe not
only in Europe but also in other continents. In accordance with the report of
the Council of Europe’s Committee of Wise Persons, which had recognised the
importance and high standard of the Commission’s work, its role should be
strengthened even further.
Once
again the number of requests from the Assembly for the Commission’s opinion
increased. In particular the Commission
has co-operated with the Assembly on the following questions :
- Opinion
on the compatibility of the death penalty with the new Constitution of Albania
- Bulgarian
law on the judiciary
- Bulgarian
law on the civil service
- Co-operation
with Croatia - revision of the Constitutional law on human rights and rights of
national minorities
- Questions
raised concerning the conformity of the laws of the Republic
of Moldova on local administration and administrative and
territorial organisation to current legislation governing certain minorities
- Constitutional
reform in Moldova
- Draft
law on the organisation of the Judiciary of Ukraine
- Draft
law on the Prosecutor’s Office in Ukraine
In
addition the Commission also adopted reports on the following subjects during
1999 which were drawn up at the Assembly’s request :
- Self-determination
and secession in constitutional law
- Guidelines
on prohibition an dissolution of political parties and analogous measures
Throughout
the year the Commission was kept informed about the work of the Committee on
Legal Affairs and Human Rights of the Parliamentary Assembly, in particular
concerning the abolition of the death penalty, applications for membership to
the Council of Europe and the application of international human rights
conventions. The Commission took note of
work being carried out within the Parliamentary Assembly and at its 41st
Plenary Meeting decided to carry out a study on the execution of constitutional
court decisions, with particular reference to decisions of recently established
constitutional courts in central and eastern Europe.
- Congress
of Local and Regional authorities of Europe
The Commission continued its close co-operation with
the CLRAE in particular concerning Albania, Bosnia and Herzegovina, Croatia,
Moldova and the situation in Kosovo, as well as the study on the financing of
political parties. The Commission’s
study on Federated and regional entities and international treaties parallels the work of the Congress on regions with
legislative powers. A Representative of
the Congress participated at all the Commission’s Plenary Meetings during 1999.
At its 38th
Plenary Meeting the Commission held an exchange of views with Mr R. Alomar,
Governor of the Bank who outlined the Bank’s activities and possible areas for
future co-operation. The Bank had been set up under one of the first
Council of Europe partial agreements and, as an independent body, was able to
act as a multilateral bank with a strong social role. It enjoys full financial
independence from the Council of Europe. The Bank’s membership has grown over
recent years and now comprises 34 states.
The Bank’s primary task is to grant loans. It had
originally been set up to support the return of refugees, but now has a much
wider scope, covering spheres such as health, the historic heritage, education,
the fight against unemployment and various projects implemented by different
local authorities in the member states. The Bank did not receive contributions
from the member states and was very highly rated on world markets.
The Bank’s priorities are to
combat unemployment and step up its work in central and eastern Europe.
The Bank currently has a
balance sheet totalling 12 billion Euros. Its profit for 1999 on the international
capital markets is estimated at between 2.5 and 3 billion Euros and its
guarantee capital totalled 1.1 billion Euros.
The Bank’s main “clients” are
governments, local authorities and public or private funding bodies. The Bank
does not award subsidies but grants loans at preferential rates of interest.
Mr Alomar thought that the Bank and the Venice
Commission had a great deal in common and that the two bodies should now begin
to co-operate more closely. Both contributed to the democratisation of Europe
since there was a close link between economic and democratic stability. The
Bank was especially interested in work in the fields of social rights, national
minorities and refugees.
The
Commission expressed its wish to co-operate more closely with the Bank.
At its 38th
Plenary Meeting (Venice, 22-23 March 1999) the Commission held an exchange of
views with Mr A. Vinas, Director of DGIa, European Commission. The European Commission was very keen to
continue co-operating with the Venice Commission, whose programme of activities
for 1999 tied in very closely with the European Commission’s own area of work.
A
framework for a Joint programme “Strengthening democracy and
constitutional development in central and eastern Europe and CIS countries” has been drawn up and will be
implemented in 2000.
The
European Commission took an active part in the work of the Venice Commission
and was represented at most of the Plenary Meetings in 1999.
The
Commission also co-operated with the OSCE and ODIHR. Representatives of these organisations
participated in many meetings, seminars and Conferences organised by the
Commission during 1999.
At the request of the Secretary General of the Council of
Europe, the Commission conducted a survey on the prohibition of political
parties and analogous measures.
Countries which co-operate with
the Venice Commission were invited to answer a questionnaire on the prohibition
of political parties, covering the existence of rules prohibiting political
parties or providing for similar measures in order to study the situation
existing in different countries. 40 countries contributed to the study.
The conclusions of the study
highlighted the following issues:
a)
party activities everywhere are guaranteed by the
principle of freedom of association;
b)
there is a possibility to sanction political
parties that do not respect a certain set of rules, through prohibition and
dissolution of political parties, in a number of countries which answered the
questionnaire;
c)
the procedure regarding measures restricting the
activities of the political parties show the authorities’ concern to respect
the principle of freedom of association.
The Commission adopted the
report on prohibition of political parties and analogous measures (CDL-INF (98) 14) at its 35th plenary meeting in Venice, 12-13 June 1998.
The report provided a good starting point for further analysis of the
question. The Commission decided to
continue its work with a view to drafting guidelines in this field and
appointed Rapporteurs to this end.
The draft guidelines on the
prohibition of political parties were discussed by the Sub-Commission on
democratic institutions during its meeting on 17 June 1999. Members of the
Sub-Commission introduced a number of changes in the text prepared by Mr
Alexandru Farcas and revised by the Secretariat on the basis of comments by
Messrs Kaarlo Tuori and Joseph Said Pullicino. In addition, the Secretariat was
asked to prepare an explanatory memorandum to the guidelines.
The Sub-Commission on
democratic institutions further discussed the draft guidelines on the
prohibition of political parties and analogous measures and the explanatory
report during its meeting in Venice on 9 December 1999 and decided to submit
them to the plenary session. At its 41st plenary meeting, the
Commission adopted both documents and decided to forward them to the
Parliamentary Assembly and the Secretary General.
A P P E N D I X
The Commission’s Guidelines on prohibition of
political parties and analogous measures read as follows :
“The Venice Commission:
Being committed to the promotion of the fundamental
principles of democracy, the rule of law and the protection of human rights, in
a context of enhanced democratic security for all, throughout the entire
Council of Europe area,
Taking into account the essential role of political
parties in any democracy, considering that freedom of political opinion and
freedom of association, including political association, represent fundamental
human rights guaranteed by the European Convention on the Protection of Human
Rights and are primordial elements of any genuine democracy as envisaged by the
Statute of the Council of Europe,
Having particular regard to
States’ practice in the field of protecting (and of organising) the exercise of
the rights to freedom of association and to freedom of expression,
Committed to the principle that these rights cannot be
restricted other than by a decision of a competent judicial body in full
respect of the rule of law and the right to a fair trial,
Recognising the need to further
promote future standards in this field, based on the provisions of the European
Convention for the Protection of Human Rights and on the values of the European
legal heritage,
Has
adopted the following guidelines:
1. States should recognise that everyone has the right to
associate freely in political parties. This right shall include freedom to hold
political opinions and to receive and impart information without interference
by a public authority and regardless of frontiers. The requirement to register
political parties will not in itself be considered to be in violation of this
right.
2. Any limitations to the exercise of the
above-mentioned fundamental human rights through the activity of political
parties shall be consistent with the relevant provisions of the European
Convention for the Protection of Human Rights and other international treaties,
in normal times as well as in cases of public emergencies.
3. Prohibition or enforced dissolution of
political parties may only be justified in the case of parties which advocate
the use of violence or use violence
as a political means to overthrow the democratic constitutional order, thereby
undermining the rights and freedoms guaranteed by the constitution. The fact
alone that a party advocates a peaceful change of the Constitution should not
be sufficient for its prohibition or dissolution.
4. A political party as a whole can not be
held responsible for the individual behaviour of its members not authorised by
the party within the framework of political/public and party activities.
5. The prohibition or dissolution of
political parties as a particularly far-reaching measure should be used with
utmost restraint. Before asking the competent judicial body to prohibit or
dissolve a party, governments or other state organs should assess, having
regard to the situation of the country concerned, whether the party really
represents a danger to the free and democratic political order or to the rights
of individuals and whether other, less radical measures could prevent the said
danger.
6. Legal measures directed to the
prohibition or legally enforced dissolution of political parties shall be a
consequence of a judicial finding of unconstitutionality and shall be deemed as
of an exceptional nature and governed by the principle of proportionality. Any
such measure must be based on sufficient evidence that the party itself and not
only individual members pursue political objectives using or preparing to use unconstitutional means.
7. The prohibition or dissolution of a
political party should be decided by the Constitutional court or other
appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair
trial.”
At its 41st Plenary
Meeting the Commission adopted its report on Self-determination and secession
in constitutional law and decided to forward to the Parliamentary Assembly.
The Parliamentary Assembly had for several years been
working on the subject of self-determination and secession. It had drawn up a
report on the subject in 1996, for which the rapporteur, Mr Severin, had based
himself partly on a discussion paper from the Centre for Political Studies and
Comparative Analysis, in Bucharest. This text had highlighted international law
issues. In June 1999, the Political
Affairs Committee had decided to consult the Venice Commission, particularly with a view to an analysis
of the relevant constitutional provisions.
The Commission’s report recalls
the actual context of the topic in Council of Europe member States. It is recalled that major political changes
of very different kinds have been a most obvious feature of the past decade in Europe.
a. The process of European unification has been characterised
by its concurrent deepening and widening. National boundaries have gradually
faded, and so has national sovereignty, as a result of the Single European Act
followed by the Treaties of Maastricht and Amsterdam.
Meanwhile, the number of states either immediately or potentially concerned by
European integration has increased considerably.
b. Just as gradually, the states reduced their powers not only
upwards to supranational authorities but also internally and downwards by devolution
of certain powers to lower tiers (regions and decentralised public
authorities).
c. At the same time but with much greater speed, democracy and
rule of law have made enormous strides in many states following the collapse of
the systems of the bipolar world.
d. Coinciding
with these relatively conflict-free developments, a process of national
assertion has gained ground in a way not seen in Europe for a long time; a form
of national sovereignty that precludes power-sharing with higher or lower
authorities has been sought or proclaimed, in particular in states born out of
secession, and the growth of nation-states has been unprecedented for such a
short period. After more than forty years of virtually total stability, new
frontiers have been established as they disappear elsewhere. This process,
which has led to the dissolution of three states, may have been peaceful in the
case of Czechoslovakia but was attended by tragedy and bloodshed in Yugoslavia
and to a much lesser extent in the Soviet Union. It should be noted that the constitutions of
the latter two States contain dispositions relative to the secession of
Republics.
The Commission further stressed that
self-determination is above all governed by international law. The definitions and general concepts, chiefly
in terms of public international law, are given in the memorandum submitted to
the Parliamentary Assembly Political Affairs Committee. The purpose of the
Venice Commission’s report is, on the other hand, to examine the question of
self-determination and secession as addressed by constitutional law. This report will not refer again to the rules
of international law, even if they are immediately applicable in the States'
domestic law. It is founded on national constitutional sources, viz. constitutions
and statutes of a constitutional nature, as well as on rulings by
constitutional courts and equivalent authorities. The states considered here
are the Council of Europe member states, with the applicant states, as well as
South Africa and Kyrghyzystan in view of their special status with the Venice
Commission.
In conclusion, the report confirms one of its prior
assumptions, namely that as the fundamental norm of the state the Constitution
is in general opposed to secession and instead emphasises concepts such as
territorial integrity, indivisibility of the state and national unity. In
certain cases, these principles allow of restrictions to fundamental rights. As
is evident in the case-law of the European Court of Human Rights, such
restrictions must nonetheless comply with the principle of proportionality and
accordingly be applied only in serious circumstances.
The term
"self-determination", unlike "secession", is by no means
alien to constitutional law. However, there is no general recognition in
constitutional law of the right to self-determination, nor any common
definition of those who are entitled to it and its content. Moreover, the
constitutions studied, when they recognise the right to self-determination, do
not deal with the procedure which allows for its implementation. Procedural
rules only exist for the modification of territorial boundaries within the
State, which is not explicitly recognised as being a form of the right to
self-determination.
The term self-determination, in
constitutional law, has multiple meanings and may in particular denote:
- decolonisation in the few cases where the issue still
arises;
- the right to independence of a state which is already
constituted;
- the right of peoples
freely to determine their political status and to pursue their development
within the state's frontiers (internal self-determination).
Internal self-determination may
be exercised by the assertion of specific fundamental rights, with a collective
character, in particular in the cultural sphere, or even by federalism,
regionalism or other forms of local self-government within the state with all
due regard to territorial integrity. Apart from the aforementioned cultural autonomy,
federalism, regionalism, and possibly local self-government, may be mentioned.
In particular, the establishment of public authorities - federated entities
especially - and the alteration of their boundaries may constitute a form of
self-determination. This broad interpretation of the internal aspect of
self-determination is intended to avert conflicts which might carry a risk of
secession.
On balance, while in very general terms secession is
alien to constitutional law, self-determination, primarily construed as
internal, is an element frequently incorporated in constitutional law but
needing to be dissociated from secession.
At its 41st Plenary
Meeting the Commission adopted its report on Federated and regional entities
and international treaties (CDL-INF (2000) 3) and decided to forward to the
Chamber of the Regions of the Congress of Local and Regional Authorities in
Europe.
The report was drawn up on the
basis of replies to a questionnaire received from 13 states. It
highlights the main aspects of the replies, which are also summarised in a
comparative table distributed simultaneously. The Commission’s study of this
question parallels the work of the Congress of Local and Regional Authorities
of Europe on regions with legislative powers.
The Commission’s report recalls
that :
Europe is
currently experiencing shifts of power both away from and towards the centre. A
trend towards increasing the powers of public authorities at sub-state level -
and specifically the growth of federalism and regionalism - coincides with the
accelerating integration of Europe. As
the number of tiers of authority increases, the question of the allocation of powers becomes ever more
important in constitutional law.
At the same time, international relations are becoming
increasingly important. To make them the exclusive responsibility of central
government, as they have been traditionally, has a much more centralising
effect today than it did fifty years ago. Moreover, cross-border co-operation
is developing, with the result that certain issues have to be regulated at both
international and sub-state level.
For these reasons the allocation of powers in the field of
international relations has now acquired new importance and is a live issue
in all federal or regionalised states and those containing autonomous entities.
Typically, the first aspect of the question - to which most of this report is
devoted - is that of international treaties. The report will therefore deal
first with the allocation of treaty-making powers (ie of substantive
responsibility for treaty-making) between the central authority and the
entities; it will then look at procedural powers before considering some actual
examples of treaties concluded by entities. However, entities are involved not
just in those treaties that they themselves conclude, but also in treaties made
by central government. They may be asked to take part in the process leading to
the conclusion of such treaties, either by being consulted or by participating
in negotiations. They may also be
required to adopt the implementing provisions of such instruments or to
incorporate them into their own legislation. Apart from questions of
treaty-making, the report will cover the participation of entities in the
(increasingly important) work of international and supra-national
organisations, before very briefly looking at specific questions about the
delegation of treaty-making powers and the settlement of disputes concerning
treaties concluded by entities.
The report concludes the
following :
Participation by federated and
regional entities in international relations (particularly treaty-based
relations) is an increasingly contemporary phenomenon, not only because of the
growth in international links but also because of developments in the
apportionment of powers, with a tendency for federated states and regions to
have a greater share of international responsibilities. But national
arrangements vary widely, from the concentration of responsibility for
international questions at central government level, to the system in which
international powers parallel domestic responsibilities. In addition to
concluding their own treaties, entities
may be involved in the preparation or implementation of treaties concluded by
central government. Where there is provision for such involvement prior to the
conclusion of a treaty, it takes the form of consultation or, more rarely,
participation in negotiations. The extent to which entities are involved in
implementing treaties depends generally on the apportionment of
responsibilities. Clearly, the entities’ role is greater in states with a
dualist tradition, where international law always has to be incorporated into domestic law, than in those with
monist systems, where implementing provisions are needed only for treaties that
are not directly applicable. Entities’ participation in international
organisations is less developed than their involvement in supranational bodies:
the fact is that the latter enjoy real legislative powers and it is essential
that entities participate in the process of European Community decision-making.
In the debate about the allocation of powers - a
major issue in the countries considered - the international dimension can no
longer be ignored.
At its 41st Plenary
Meeting the Commission adopted its report on Electoral law and national
minorities.
The report is the culmination of research into the
participation of members of minorities in public life, based on a questionnaire
on the subject and it deals with the first part of the questionnaire, relating
to the law governing elections. The report looks at electoral provisions issues
arising for national minorities, highlighting those general electoral law
themes which are indissociable from any consideration of the question. The specific situation of every minority
makes it very difficult to come up with general principles and recommendations.
During the last ten years and the upheavals which
have occurred in Europe, the protection of minorities has once again become one
of the major preoccupations of European public law specialists. Far from being
an academic subject reserved for those specialising in constitutional law and
political science, it is central to political debate and to achieving the three
fundamental principles of Europe's constitutional heritage on which the Council
of Europe is based - democracy, human rights and the rule of law.
The involvement of members of
minorities in the various aspects of life in society is an important factor in
their integration and in the prevention of conflicts. This applies especially
to what is commonly called public life, that is to say participation in state
bodies.
The report covers a central
element of public life - participation in a state's elected bodies, especially
the national legislature. Such participation is studied through electoral law
and the possibilities it gives members of national minorities of being present
in elected bodies.
1. Rules of electoral law which provide for special
representation of minorities are an exception. They will be briefly considered
in the first section of the report.
2. In most cases, the representation of minorities in an elected
body is achieved through the application of the ordinary rules of electoral
law, which treat people belonging to national minorities and others in the same
way.
It is not always easy to identify which of these
general rules promote and which hinder representation of minorities. There are
various reasons for this.
a. First, the relationship between an electoral system and the
composition of elected bodies - other than with regard to its purely
mathematical aspects - is one of the most controversial questions in political
science. The diversity of situations in the various states makes it impossible
to deduce detailed rules which may be applied universally. Furthermore, the
significance of international comparisons must be tempered by factors other
than the mathematical formula for converting votes into mandates, such as the
possibility voters may have of choosing between the candidates on a list or
more than one list. The number of seats per constituency, although not part of
the electoral system in its strict meaning, is also a decisive factor.
b. Second, in most states which replied to the questionnaire,
there are no precise data on the presence of members of minorities in elected
bodies. Failing such data, it is very difficult to know whether the electoral
system tends to result in under-representation or over-representation of the
minority in the elected body.
c. Third, it is often hard to ascertain whether or not the
purpose of a rule is to ensure or strengthen the representation of minorities
(or, on the contrary, to lessen it). For one thing, such an objective is not
necessarily explicit. Also, the representation of national minorities, even if
intended, is not necessarily the main objective of legislation, especially in
states where there are no sizeable minorities. Thus, in a strongly proportional
electoral system, which aims to ensure that small political groups are
represented, the representation of national minorities may be an associated
aim. And finally, paradoxical as it may seem, when an electoral system ensures
that minorities are represented to their satisfaction, the question is not
crucial, and thus there is no vital reason for wondering whether the
legislation tends to ensure that minorities are represented. As a consequence,
no distinction will be made in the present report between those ordinary
electoral rules which merely result in the protection of minorities and those
whose very purpose is such protection.
d. The rules on the conversion of votes into seats, especially
those of a mathematical nature, which are most universal in scope, apply above
all to political parties. They never concern a national minority directly.
Their significance for the representation of national minorities therefore
largely depends on the relationship between national minorities and political
parties, or at least political groupings. Such rules concern national
minorities when there are parties or other organisations peculiar to such
minorities that present their own lists. Obviously, it remains to be seen to
what extent the voters belonging to the minority - or indeed the majority -
vote for such parties. If there are no such lists, there may be a link between
an electoral system and the representation of minorities when membership of a
minority is a decisive criterion in voting by citizens.
The report concludes :
The wide variety of electoral
systems have been grist to generations of legal specialists, political analysts
and mathematicians and will continue to be so. It is true that they do not all
without exception guarantee that national minorities are fairly represented,
but the main conclusion which may be drawn from the foregoing analysis is that
there is no absolute rule in this field. Indeed, the electoral system is but
one of the factors conditioning the presence of members of minorities in an
elected body. Other elements also have a bearing, such as the choice of
candidates by the political parties and, obviously, voters' choices, which are
only partly dependent on the electoral system. The concentrated or dispersed
nature of the minority may also have a part to play, as may the extent to which
it is integrated into society, and, above all, its numerical size.
Nevertheless, the electoral
system is not irrelevant to the participation of members of minorities in
public life. On the one hand, certain states - but they are few in number -
have specific rules designed to ensure such participation. On the other hand,
it may be that neutral rules - for example, those relating to the drawing of
constituency boundaries - are applied with the intention of making it easier
for minorities to be represented. More often than not, however, the
representation of minorities is not a deciding factor in the choices made when
an electoral system is adopted or even put into practice. However, as regards
the presence of members of minorities in elected bodies, the following general
remarks may be made.
- The impact of an electoral system on the representation of
minorities is felt most clearly when national minorities have their own
parties.
- It is uncommon for political parties representing national
minorities to be prohibited by law and highly unusual for this in fact to
happen. Only in very rare cases does this constitute a restriction upon the
freedom of association, which nonetheless respects the principle of
proportionality, and is consistent with the European constitutional heritage.
- Although parties representing national minorities are very
widely permitted, their existence is neither the rule nor indispensable to the
presence of persons belonging to minorities in elected bodies.
- The more an electoral system is proportional, the greater
the chances dispersed minorities or those with few members have of being
represented in the elected body. The number of seats per constituency is a
decisive factor in the proportionality of the system.
- When lists are not closed, a voter's choice may take
account of whether or not the candidates belong to national minorities. Whether
or not such freedom of choice is favourable or unfavourable to minorities
depends on many factors, including the numerical size of the minorities.
- Unequal representation may have an influence (positive or
negative) on the representation of concentrated minorities, but the replies to
the questionnaire do not indicate any concrete instances.
- When a territory where a minority is in the majority is
recognised as a constituency, this helps the minority to be represented in the
elected bodies, especially if a majority system is applied.
To sum up, the participation of members of national minorities in
public life through elected office results not so much from the application of
rules peculiar to the minorities, as from the implementation of general rules
of electoral law, adjusted, if need be, to increase the chances of success of
the candidates from such minorities.
- Guidelines
on prohibition and dissolution of political parties and analogous measure
(CDL-INF (2000) 1) adopted by the Commission at its 41st Plenary
meeting (Venice, 10-11 December 1999);
- Self-determination
and secession in constitutional law (CDL-INF (2000) 2) adopted by the
Commission at its 41st Plenary meeting (Venice, 10-11 December
1999);
- Federated
and regional entities and international treaties (CDL-INF (2000) 3) adopted by
the Commission at its 41st Plenary meeting (Venice, 10-11 December
1999);
- Electoral
law and national minorities (CDL-INF (2000) 4) adopted by the Commission at its
41st Plenary meeting (Venice, 10-11 December 1999);
Co-operation
with constitutional courts and courts of equivalent jurisdiction further
advanced during the year 1999. In addition to the publication of the Bulletin on Constitutional Case-Law and
the database CODICES every four months, the series of seminars in co-operation
with constitutional courts has firmly taken roots. Moreover, throughout the year the Commission
held exchanges of views with Presidents and members of European Consitutional
Courts, in particular with Mr Adamovich, President of the Constitutional Court
of Austria, Mr Rozenko, Vice-President of the Constitutional Court of Ukraine
and with Ms Jaeger, member of the First Senate, Constitutional Court of
Germany.
Bulletin on Constitutional
Case-Law
About 50
constitutional courts and equivalent bodies participated in the publication of
the Bulletin on Constitutional Case-Law and
the database CODICES. Upon request by
the Presidency of the Conference of the European Constitutional Courts, the
Commission published two special issues of the Bulletin on the Freedom of Religion and Beliefs and on Descriptions
of Courts. The latter issue was also published in Russian. The
publication of a Russian edition of the Special Bulletin on the Leading Cases
of the European Court of Human Rights entered its final stage at the end of
1999.
An
agreement was concluded with the Association of Constitutional Courts using the
French Language (ACCPUF) which allows for the exchange of publications of both
bodies in favour of participating courts. ACCPUF was allowed to use the
structure of the Bulletin and CODICES
including the Systematic Thesaurus of the Commission for its own bulletin and
database.
CODICES
In 1999
three up-dated versions of the database CODICES were published on CD-ROM and
via Internet. CODICES contains all previous regular
and special issues of the Bulletin (2200
précis), together with over 2000 decisions in full text, the laws on the
courts, descriptions of the courts and constitutions. All special Bulletins have been integrated into
CODICES as well. Several constitutions already have been indexed article by
article according to the Thesaurus to make them searchable by topic.
Seminars
in co-operation with constitutional courts
These seminars build
upon a mutual exchange of experience of judges from 'older' and more recently
established constitutional courts. Experience has shown that similar problems
often arise in parallel in several countries. While constitutions may differ,
the principles which govern the decisions of constitutional courts are the
same. An exchange of experience between the courts is therefore likely to
contribute to the promotion of the rule of law.
In 1999, such seminars were organised in
co-operation with the constitutional courts of Armenia, Azerbaijan, Georgia,
Moldova, Ukraine (three seminars). Topics dealt with included the protection of
private property by the Constitutional Court, constitutional control in federal
and unitary states, the resolution of conflicts between powers by the
Constitutional Court, the execution of the decisions of the constitutional
court and the role of the secretariat of the Constitutional Court.
The increasing demand for these seminars shows that they
effectively address the needs of requesting courts.
The Commission organised four seminars within the
framework of this programme during 1999 :
1. Seminar on “Federal and Regional States in the perspective of European Integration”
(Bologna, 18-19 March 1999);
The Commission organised, in co-operation with the Johns Hopkins University and the University of Bologna, on 18-19 March 1999 in Bologna a Seminar on “Federal and Regional States in the perspective of European integration”.
Today in Europe, powers are
even more than ever shared between the national State, its entities and
supranational bodies. It has become
therefore indispensable to study the relationships between the different
levels. This was achieved during the
above-mentioned UniDem Seminar.
The seminar’s first day, opened
by Mr Evans, rector of the Johns Hopkins University, was devoted to the
European Union and in particular to the relationship between the Union and
Federated States or regions. Following an introductory report by Prof. La
Pergola, President of the Venice
Commission, which stressed common values on the continent in particular in the
human rights field, national reports were presented on the situation in
different Federal and Regional States of the
European Union. The conclusions were presented by Prof. De Vergottini (University of Bologna).
The debates, far from
restricting themselves to the single theme of European integration, or even the
European Union, also addressed the general question of regional integration
which is becoming more and more topical in different parts of the planet, in
the presence of participants from five continents. Thus, the second day was devoted to points of
view from outside Europe on questions of
regional and federal integration.
Speakers were from the United
States, South
Africa and Japan.
The proceedings of the seminar have been published
in the series “Science and Technique of Democracy”.
The Commission organised, in co-operation with the
Constitutional Court of the Czech Republic and the University of Montpellier, on 23-25 September 1999 in Brno a Seminar on “The right to a fair trial”.
This seminar falls within the framework of seminars
on European constitutional heritage, at which members of Constitutional Courts
participate. The seminar’s work was divided into two distinct parts.
In the first part general
reports were presented concerning the case-law of the organs of the European
Convention on Human Rights, national reports by speakers from Czech Republic,
Hungary, Romania, Spain and Switzerland, as well as the United States and South
Africa.
In the second part the participants examined a
practical example on the right to a fair trial. In addition to the rapporteurs,
judges from Constitutional Courts or equivalent bodies from more than twenty
States presented the solutions which would be applied in their countries to
questions such as the presence of foreign judges in the Court, a defendant who
is not allowed to express himself in his mother tongue, or the fact that the
lawyer in the opposing party is a relative of one of the judges.
Thanks to the presence of high level experts,
constitutional or supreme court judges, this seminar highlighted one of the
fundamental objectives of the Venice Commission : transconstitutionalism,
which allows courts to benefit from the experience of their peers :
European constitutional heritage has a dynamic character, it is progressively
growing by the exchange of information and the reciprocal renewal of national
solutions.
The Seminar’s proceedings will be published in the
series “Science and Technique of Democracy”.
The Commission organised, in co-operation with the Ministry
of Foreign affairs of Slovenia, on 26-27
November 1999 in Bled a Seminar on “Societies in conflict : the contribution of
law and democracy to conflict resolution”.
The seminar was opened by Mr Volk, Secretary General
of the Ministry of Foreign Affairs, and by Mr Holovaty, Vice-President of the
Commission. It was mainly attended by experts on the various European conflict
areas, in particular in South Eastern Europe. Its purpose was to analyse the
various conflicts and try to identify legal tools which would be useful for the
settlement of such conflicts. The seminar was followed on 29 and 30 November by
the “Conference on the contribution of constitutional arrangements to stability
in South Eastern Europe” in Brdo (see also part I, point 19 - Stability Pact).
Several reports addressed
general issues of societies in conflict such as human rights violations,
ensuring human security in conflict situations and the role of international
law in the settlement of disputes. These reports were followed by country
studies on Moldova, Bosnia and Herzegovina, Kosovo, the Federal Republic of
Yugoslavia and Albania. An intervention presented the Northern Ireland
Agreement as an example of (relatively) successful conflict resolution. Further
reports were devoted to the UN efforts for a settlement in Cyprus and the role
of the Office of the High Representative in Bosnia and Herzegovina.
The general report was
presented by Ms Thune from Norway, former member of the European Commission for
Human Rights.
The proceedings of the seminar
will be published in the series Science and Technique of Democracy.
The Commission organised, in co-operation with the University of Trieste, on 13-14 December 1999 in Trieste a Seminar on “the implementation of the new
Constitution of Albania”.
The seminar emphasised the
following topical subjects in Albanian constitutional law:
- The
problem of the death penalty. A few
days prior to the seminar, the Albanian Constitutional Court had declared the
death penalty unconstitutional, based in particular on an opinion by the Venice
Commission.
- Models
for the protection of national minorities. Several models were
compared. On the one hand, the solution
of territorial autonomy (federalism, regionalism, special status); on the other hand, the granting of specific
rights to persons belonging to minorities, in particular rights relating to the
use of a minority language, access to the press, instruction in a minority
language.
- The
restitution of property according to European law and international human
rights. This is obviously a crucial
question in all new democracies. Some
solutions can be found in international law and in particular the Additional
Protocol to the European Convention on Human rights.
- Options
for electoral legislation. The new
constitution introduces specific rules in electoral matters, in particular
concerning the electoral system strictly speaking. They should now be introduced into law.
Respect for basic principles of electoral law, universal suffrage, equal, free,
direct and secret ballot.
- The
Constitutional Court. The seminar
was an opportunity to compare the experiences of the new constitutional courts
of Central and Eastern Europe, to enable the Albanian Constitutional Court to
benefit from these experiences.
It is envisaged to hold the
following UniDem seminars :
- Conference
on “The Protection of Human Rights in the 21st Century: Towards
Greater Complementarity within and between European Regional Organisations ” in
co-operation with the Irish Presidency of the Committee of Ministers (Dublin, 3-4
March 2000);
- Seminar
on “Democracy in a Society in Transition” in co-operation with the University
of Lund (Lund, 19-20 May 2000);
- Seminar on “the Ombudsman Institution in Europe” (Athens,
May 2000)
- Seminar on “Constitutional change and
European integration” in Cyprus (date to be fixed)
- Seminar
on “State consolidation and National identity” in Moldova (date to be fixed)
